90 seconds part two

ellaro9

AND THE DEFENDANT COUNTERCLAIMS:- 

 

CLAIMANT’S BREACH OF THE PROTECTION FROM HARASSMENT ACT 1997.

54. This is a case without a doubt demonstrating a serious act of prolonged harassment believed to be equivalent to the harassment and threats Lisa Ferguson was at the receiving end of in the case between Ferguson vs British Gas Trading Limited [2009] EWCA Civ 46.

 s.1(1)(b): “he knows or ought to know amounts to harassment of the other; And in s1(2): For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

 s.2(1) Offence of harassment. (1)A person who pursues a course of conduct in breach of [F5section 1(1) or (1A)] is guilty of an offence.
(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

55. It is to be noted that the Act does not provide any defence for “accidental” harassment. Confirmed by Lord Justice Jacob in the above cited case, nor there is any policy reason why big corporations such as the Claimant who are among the biggest players in the Parking Industry, should be exonerated for conduct which, if carried out by an individual, would amount to harassment.

 

56. I have provided sufficient evidence and information to show that the Claimant knew the conduct complained of amounted to harassment, or that it ought to have so known it was. I have evidenced a prolonged campaign of harassment capable of causing me such alarm and distress. In accordance with what I understand in the Laws of Agency - the Claimant is ultimately responsible for the third parties conduct and actions. I did everything that was reasonably expected as a vulnerable appellant in a territory virtually unknown to me at the time.

57. At the time of writing this statement, I have still not received the Claimant’s defence to the counterclaim or their Witness Statement.

58. The Claimant effectively says it has done nothing wrong; that it is perfectly all right for it to treat me in this way for years and brushed it off by saying that; “It is the Claimants position that reasonable cause was established due to the Defendant’s vehicle being seen on private land in breach of the Terms and Conditions displayed. It is considered reasonable for the Claimant to seek redress if such vehicles are seen in breach of the Terms and Conditions”

 

59. There is sufficient evidence in my defence and particulars of counterclaim to support my defence and counterclaim. The claimant failed to file a defence to my counterclaim despite being allowed more time to do so by the court.

They have failed to provide any rationale to engage to the defendants points, as you would ordinarily expect from a defence to a counterclaim (so I’m told).

I can clearly see that they have failed to engage with any of the core issues and facts submitted in my particulars of counterclaim. 

 

60.  As such I believe they are still engaging in unreasonable conduct in litigation as well as continuing with the same pattern of behaviour of harassment as they have done for several years.
This is most certainly not a counterclaim that can be categorised as “totally without merit” because the remedy I seek is not a remedy unknown to the law.

ellaro9

61. This case highlights the dangers of company’s “Robo Claim“ business model, impersonal approach , spewing out robotic responses, and making no attempt to read anything presented in front of them- not only from my defence or particulars of counterclaim. A complete disregard for the rights and interests of consumers - particularly disabled motorists who are entitled to park in disabled bays and must be given the opportunity to read the signs before being bound to ANY contract. 

Issuing a PCN within 84 seconds is appalling.

62.  As such, it is without a doubt they are engaging in unreasonable conduct in litigation and still continue with the same pattern of behaviour that constitutes a course of conduct amounting to harassment and intimidation. This case, without a doubt, falls comfortably within those types of cases in which the Court should exercise its powers under CPR 27.14(2)(g) and give out the strongest sanctions allowable .

63.  Lord Denning MR’s aptly described the concept of abuse of process in a dissenting judgment in the Court of Appeal case, namely Goldsmith v Sperrings and others [1977] 1WLR 478. He said at p.489:  “In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly, or it can be abused. It is used properly when it is invoked for the vindication of a man’s rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end.  When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. Sometimes abuse can be shown by the very steps being taken in the courts. At other times the abuse can only be shown by extrinsic evidence that the legal process is being used for an improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used. If it is done in order to exert pressure so as to achieve an end which is improper in itself, then it is a wrong known to the law. This appears distinctly from the case which founded this tort. It is Granger V Hill 1838 4 Bing (NC) 212 which arose out of the old process of Capias. The plaintiff recovered damages for abuse of the process. It had been abused because it had had because it had been taken as Tindal CJ said at page 221, "to effect an object not within the scope of the process unquote": and as Bosanquet J said at page 224: the process was enforced for an ulterior purpose. ... I know that the remedy by staying the process is a strong remedy, and only to be exercised in exceptional cases. But there are cases in which justice may require it to be done. And then it should be done if the evidence is sufficient for the purpose."

64. The ideas inherent in this reasoning have flowed through case law right up to recent times some 45 years on. For example, reviewing the authorities, especially the judgment of Lord Clarke in Fairclough Homes Limited v Summers [2012] UKSC 26, it seems to me clear that the chief purpose of abuse of process lies more in achieving procedural fairness before trial, than it does in featuring in the disposal of a claim after trial. This is not to say that the Court can never resort to it after a trial, but this would be rare. Lord Clarke said “The test in every case must be what is just and proportionate. It seems to us that it will only be in the very exceptional case that it will be just and proportionate for the court to strike out an action after a trial.” [Para 61 of Fairclough]. 65. Rule 3.4 of the Civil Procedure Rules which enables the Court “to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim” (CPR 3.4(2)(a)), or which is “an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings” (CPR 3.4(2)(b)).''


65. EQUALITY ACT 2010

142 Unenforceable terms

(1) A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—

(a)as to the terms on which A provides the service to B;

29 Provision of services

(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.

(3) A service-provider must not, in relation to the provision of the service, harass—
(a) a person requiring the service, or
(b) a person to whom the service-provider provides the service.

(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.

 

66. The statutory duty to make reasonable adjustments in a car park are not met merely by painting some disabled bays; barriers to access are not just physical and discrimination includes harassment of disabled people.

 

 

67. As a company, Vehicle Control Services has specifically breached their  legal duties under the 'EHRC Equality Act Code of Practice for Service Providers' which has been law since 2011 and being mandatory, the breaches of duties under that Code form part and parcel of the statute law that I am relying upon.

68.  Accordingly, it should not preclude the Court from concluding that the Claimant’s behaviour was altogether unreasonable. They harassed me for years, they started this action and pursued it without a sight of discontinuance or even a hint of remorse or apology, and this must fall into the category of unreasonable conduct attracting the costs sanction of CPR 27.14(2)(g) in favour of the Defendant.

69. The Equality Act 2010 sets out when someone is considered to be disabled and protected from discrimination. The definition is set out in section 1 and section 6 of the Equality Act 2010.

 It says you’re disabled if:

• you have a physical or mental impairment
• that impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities

 

These are covered in Schedule 1, Part 1 of the Equality Act 2010

Part 1 Determination of disability

 

Impairment

1 Regulations may make provision for a condition of a prescribed description to be, or not to be, impairment.

Long-term effects

2(1)The effect of an impairment is long-term if—

(a)it has lasted for at least 12 months,

(b)it is likely to last for at least 12 months, or

(c)it is likely to last for the rest of the life of the person affected.

(2)If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

(3)For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.

(4)Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.

 

ellaro9

70. SECTION 6 Disability

(1)A person (P) has a disability if—

(a)P has a physical or mental impairment, and

(b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2)A reference to a disabled person is a reference to a person who has a disability.

(3)In relation to the protected characteristic of disability—

(a)a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;

(b)a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4)This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)—

(a)a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and

(b)a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

(5)A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6)Schedule 1 (disability: supplementary provision) has effect.

69. Schedule 20 and 21 of the Equality Act 2010

 

71. SECTION  20 Duty to make adjustments

(1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2)The duty comprises the following three requirements.

(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6)Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7)A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.

(8)A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.

(9)In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to—

(a)removing the physical feature in question,

(b)altering it, or

(c)providing a reasonable means of avoiding it.

(10)A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—

(a)a feature arising from the design or construction of a building,

(b)a feature of an approach to, exit from or access to a building,

(c)a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or

(d)any other physical element or quality.

(11)A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.

(12)A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.

(13)The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column.

 

72. SECTION 21. Failure to comply with duty

(1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

 

ellaro9

73. Schedule 26 Harassment

(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B's dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—

(a)A engages in unwanted conduct of a sexual nature, and

(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—

(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b)the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

 

 74. * (i) Ferguson v British Gas Trading Ltd  [2009] EWCA Civ 46

https://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html 

 

where Sedley LJ held: 

[52] ''...For my part I would draw attention to the fact [...] that harassment is a crime as well as a tort. Contrary to what was more than once suggested, this does not modify in any way the constituents of the wrong. 

[53] Parliament's intention in passing the Protection from Harassment Act 1997 was to criminalise the kind of serious and persistent unwarranted threat which is alleged here, giving a right of civil action as a fallback. In this situation it ought not to be left to hardy individuals to put their savings and homes at risk by suing. The primary responsibility should rest upon local public authorities which possess the means and the statutory powers to bring alleged harassers, however impersonal and powerful, before the local justices.''

 

75. (ii) Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile)

https://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html 

 

where HHJ Chambers QC concluded at [83]:

''Cumulatively and damningly is what I find to be the way that MBNA and the Defendant went about recovering their debt. [...] It seems to me that such conduct has no proper function in the recovery of consumer debt. Whatever the strength of the suggestion that the courts should only be a last resort, I can see no legitimate comparison between a series of measured warnings which, after full opportunity for response, lead to legal proceedings and what took place. {...there} ...can be no excuse for conduct of which it must be supposed the sole purpose must have been to make the Claimant's life so difficult that he would come to heel. I cannot think that in a society that is otherwise so sensitive of a consumer's position this is conduct that should countenanced.''

 

76. VCS have certainly harassed me and created an intimidating atmosphere as well as demanding money from me for using a disabled bay that they know I was entitled to use. 
Firms can't charge for a 'reasonable adjustment' and not only did the ticketer upset me on the day and drive me away (literally) from the shopping centre and deny me the right to stay unharassed and unpenalised in that bay, but the barrage of letters since - and the stress of a court claim - have compounded that course of conduct.  

 

77. Breach of data protection principles

Not in dispute that the Claimant, as data controllers, were obliged to abide by Data Protection Principles.

These are set out in the General Data Protection Regulation (“GDPR”), Article 5(1) 26 

The relevant principles are Art 5 (1(a) and (b).

Accordingly:-

i) Claimant was only permitted to collect the DVLA registered keeper's personal data for “specified,

explicit and legitimate purposes” (GDPR Art 5 (1)(b));
and

ii) They were obliged to process it lawfully and fairly (Art 5(1)(a)).

78. Re the obligation to process data lawfully and fairly, Art 6 (1)27 sets out the six

lawful bases, at least one of which must apply. Only two from that list of six are relevant:

 

15 (b) where processing is necessary for the performance of a contract to which the

data subject is party; and

(f) where processing is necessary for the purposes of the legitimate interests

pursued by the controller...

Article 5 GDPR, found at
 https://gdpr-info.eu/art-5-gdpr

Article 6:
https://gdpr-info.eu/art-6-gdpr/ 

 

79. Claimant did not have a legitimate purpose for collecting the registered keeper data in

the first place (breach of Art 5 (1) (b);
and it was thereafter processed unlawfully and unfairly (Breach of Art 5 (1) (a).
because no contract was created between the Claimant and Counterclaimant and the
conduct amounted to a breach of the Equality Act 2010 rendering the processing of the keeper's
data unlawful from the outset, as the Claimant's employee had already seen the Blue Badge, such that
the Claimant had no 'reasonable cause' (DVLA KADOE rules) to even access the data, at all 
and there was no 'necessary processing for legitimate interests'.

 

 

STATEMENT OF TRUTH:
I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

Name:

Signature:

10th July 2021

 

pould

Excellent stuff. Well done you. 

Fruitcake

Like I said, the OP worked very, very hard on this case.

Again, very well done. If I was wearing one I would tip my chapeau to you.

95Rollers

Excellent WS. Even though it is specific to your situation there are some excellent nuggets of information that can help many others.  Thank you for sharing this excellent resource and congratulations on getting the Justice you deserved against these proven parasites!

D_P_Dance

This is what happens when knuckle draggers come up against educated people.  

ellaro9

Well, the cheque has arrived, thank you Jake, I'm glad it wasn't necessary to send the bailiffs in, but more than that, I'm hopeful that this whole sorry episode means you will not persecute another disabled person.

Redx

Nice one , it's good to see the boot on the other foot and Jake having to shell out , the biter got bit , quite rightly so

I have no qualms about VCS or Excel losing lots of money through predatory ticketing and targeting the disabled , biting them back on the backside !!